ASEAN and the Death Penalty: Theoretical and Legal Views and a Pathway to Abolition

Abstract

This concluding chapter reviews how retentionist countries often seek to justify their use of capital punishment by relying on punishment theories that draw a distinction between the infliction of just punishment and arbitrary and unjust violence by the State. It also examines how the continuing use of capital punishment in Southeast Asian countries has been explained by some experts to reflect the distinctive Asian perception of human rights, being one that oversees the prevalence of community rights over individual rights, thus reinforcing the desideratum of the State to accentuate stringent punishment for offenders who are viewed as rebelling against the regiments of State control. There has been an undeniable worldwide decline in retention over the last forty years. This chapter, therefore, asks why, despite this inexorable global trend and the universal recognition of human rights, do most ASEAN States cling to retentionist principles and policies? Moving beyond traditional theories on criminal justice, particularly retribution and utilitarianism, this chapter attempts to conceptually unpack the factors used to justify the retention of the death penalty in the region. It concludes that the death penalty situation in the eight ASEAN countries remains rather static and the record somehow reveals a very mixed reality, reflecting the absence of any shared policy on the death penalty among AMS other than the proviso, ‘in accordance with law’. Some observations and recommendations are then made for Member States to consider possible steps towards the abolition of the death penalty.